Can Kazakhstan Use the United States Legal System to Attack Free Speech?

The government of Kazakhstan has pursued one of its fiercest critics, the newspaper Respublika, with lawsuits and threats for fifteen years. But despite blocks, bans, and overwhelming distributed denial-of-service (DDoS) attacks, Respublika continues to publish on its websites, which critically report on the country’s affairs and provide a forum for discussion from the relative safety of servers hosted in the United States. Because Respublika’s site is blocked in Kazakhstan, the news service also posts its articles to third party sites, including its Facebook group.

Earlier this month, the Kazakhstan government had a major setback in its attempt to use the U.S. legal system to attack Respublika. A federal judge in California rejected Kazakhstan’s demand that Facebook turn over information about users associated with Respublika’s account on the social media site. The judge found that Kazakhstan lacked the appropriate judicial authorization to pursue such discovery, rejecting Kazakhstan’s claims that its Computer Fraud and Abuse Act (CFAA) lawsuit gave it free rein to obtain information about its critics. The CFAA is a federal anti-hacking statute that prohibits unauthorized access to computers and networks and was enacted to expand existing criminal laws to address a growing concern about computer crimes. It also allows civil actions to be brought under the statute as well.

Kazakhstan’s CFAA lawsuit arose after a huge volume of emails of Kazakhstan’s ruling regime, purportedly from both official governmental email and the private Gmail accounts of several officials, appeared on the internet in August 2014. Whether the emails and documents were released by someone who “hacked” into Kazakhstan’s computers, or simply leaked by someone within the government remains an open question. Respublika used several of the emails to write and publish numerous articles on its website and Facebook page.

In March 2015, Kazakhstan filed a lawsuit in the Southern District of New York, claiming that unidentified individuals broke into its email system and Gmail accounts in violation of the CFAA. Respublika won the suit when Judge Edgardo Ramos in New York ruled that the First Amendment “protects the publication of the documents by anyone other than those directly involved in their purported theft.” However, the judge told Kazakhstan that it could come back to court and seek a preliminary injunction against Respublika if it had evidence that Respublika was somehow involved in the alleged “hacking.”

Seizing on Judge Ramos’ perceived suggestion, in November 2015, Kazakhstan subpoenaed Facebook for the names, email addresses, IP addresses, and MAC addresses of the users associated with Respublika’s Facebook accounts. Facebook resisted Kazakhstan’s request for information about its users, leading Kazakhstan to file a motion to compel in the Eastern District of California. Facebook opposed Kazakhstan’s motion and moved to quash the subpoena.

[T]he proposed discovery from Facebook, which involves Respublika, a news organization, raises significant concerns regarding the reporter’s privilege and the First Amendment. Kazakhstan contends that it does not seek journalistic information or content, such as reporter’s notes, drafts, or communications. However, it does seek the names, email addresses, IP addresses, and MAC addresses of administrators and posters on the Respublika Facebook Page and the Ketebaev Facebook Page. Such persons may well be journalists, writers, and other staff or contributors to Respublika, whose identifying information and location may be entitled to protection, especially in light of the serious allegations of oppression and intimidation by Kazakhstan made by Respublika. See, e.g., Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972).

Under U.S. law, reporting on leaked government documents in the public interest is not a crime. Anything less would be a violation of the United States’ First Amendment. Kazakhstan’s leadership may not like what Respublika has to say, but it should not be able to use the U.S. courts to silence online criticism, threaten its web host, or spy on its authors.